The New York Times reported (yes, reg. req.) last week that New York’s Metropolitan Transit Authority is scrambling to enforce trademark rights in its wide array of iconography, including the famous alphanumeric train symbols known to all New Yorkers. . . .

Still and all, there is an interesting trademark policy issue in here somewhere. It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

A few months later I reported on a “crackdown” by the MTA on unauthorized distribution of copyright-protected maps of the subway, and cited Bill Patry, who said, in a similar vein:

There is no statutory bar to protection for original subway maps, therefore. There should, though, be a common sense bar but that, like common decency, is apparently lacking.

Later in 2005 I saw the MTA’s overreaching finally exceed the breaking point, when it tried to register trademark rights in this original phrase (they were succesful, too).

What, really, is the point? It’s just your (my) tax money at work.

In 2006 I noted a story reporting that — unlike a lot of other copyright, trademark and right-of-publicity owners who have not made a peep — the MTA made those masters of confusion, “Jews for Jesus,” stop using the transit symbols in their underground evangelizing, though in reality, they probably didn’t have to.

cheek, that this would seem to undermine any secondary meaning connecting the subway route symbols and subway routes at all.

This suddenly came to my attention again, when, three weeks ago, the following comment appeared on that two year old post:

There is an interesting discussion going on about this at Flickr [I assume he means this — LOC]. The MTA is now trying to stop people from selling prints of pictures they took on the subway apparently because they contain the route symbols. What will this mean to the thousands of prints that are sold by railfans at train shows every year? Unfortunately the route symbol is also a functional display that is part of the train – if it is photoshopped out of the picture then the picture becomes editorially and historically inaccurate. They are going too far with this and it is not as if these pictures earn huge profits – no-one ever got rich selling prints at train shows!

No, no huge profits — but huge employment justification for people who work in municipal IP enforcement agencies. That story has been picked up here.

There’s more! There’s this — it seems that New York’s MTA is asserting “rights” in route symbols that don’t exist in New York, but do exist in San Francisco, against the designer of t-shirts bearing the gags below!

New York’s Metropolitan Transportation Authority says the maker of the StationStops iPhone app does not have permission to use MTA schedules to back his app, ReadWriteWeb reports.

Chris Schoenfeld received a Digital Millenium Copyright Act notice asking him to take his application down, as MTA’s train and bus schedules were copyrighted intellectual property.

It’s idiotic. Unlike private parties, the City [and the “authorities”]– which, historically has acted as if taxpayer money grew on trees — has “no budget.” No budget is a term of art in the field of intellectual property for “we don’t settle, because we don’t have to.” Merits are irrelevant when there is no down side to litigating; all the more so when, to the contrary, someone’s job or department or seniority depends on finding things, no matter how idiotic, to justify his existence.

That looks a lot like what’s going on here. See, there’s nothing private parties can do in business and law that the government can’t do worse!

[In] a recent phone interview, a spokesman for the agency, Aaron Donovan, seemed to backtrack: “We have no claim on Muni’s icons, we would need to look into the specifics of this case in greater detail to determine why the letter may have been sent,” he said. “The images on Mr. Moore’s blog did not appear to show anything that would represent a trademark violation against the New York MTA.”

No they didn’t, did they? The MTA is way off track here. Who’s conducting this train, anyway?

22 thoughts on “MTA’s way or the highway”

It is great to read an intellectual property lawyer identifying not just my case or someone else’s, but discussing how the MTA licensing program, very broadly, is completely out of control, with specific anecdotes which are all too familiar to me.

I would also point you to the case of F-Stop Bagels, which from what I understand, was simply a bagel shop next to the F Stop.

All of this publicity encouraged me to upload my images to Zazzle.com rather than CafePress. No news from the NY MTA this time (so far) but Zazzle did pull one of the products: the postage stamps. The reason? “Design includes material that Zazzle believes would hurt its reputation.” — Joe

It gets even worse – the MTA forced the removal of pictures for sale on Cafepress and Zazzle. It is unclear at this time if they are claiming to own the rights to every image of a subway train taken in New York or just the ones that display the route symbol.

Success! The SF Weekly picked up my story, made some phone calls to the NY MTA, and verified they “have no claim on Muni’s icons,” and “would need to look into the specifics of this case in greater detail to determine why the letter may have been sent.” In addition, the NY MTA states that the “images on Mr. Moore’s blog did not appear to show anything that would represent a trademark violation against the New York MTA.”

About the Title: The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

As for me, I'm Ron Coleman, an AV-rated partner at Archer - Attorneys at Law,** a firm of about 180 attorneys with offices in NJ, NY, PA and DE (but active nationwide). I've been called an "IP maven" but I'm really a commercial litigator with a special interest in copyright and trademark infringement claims involving the Internet, including advising clients how to avoid them or - if necessary - how to make the other guy wish he had.

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THIS BLOG IS ONLY A BLOG, NOT LEGAL ADVICE. IT IS IN PART AN ADVERTISEMENT FOR LEGAL SERVICES BY ME, RONALD D. COLEMAN, BUT I AM NOT YOUR LAWYER. YOU ARE NOT MY CLIENT. JUST WALK BESIDE ME AND BE MY FRIEND.